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Lambda foils second attempt to have case stopped before ever being heard

June 24, 1999

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(NEW YORK, June 24, 1999) -- In an important step towards overturning one of the remaining state laws banning most sexual intimacy for lesbian and gay couples, the Arkansas Supreme Court ruled unanimously Thursday that a lawsuit against the state sodomy law can proceed, Lambda Legal Defense and Education Fund said.

Lambda is bringing the case on behalf of seven lesbian and gay Arkansans, arguing that the law violates the right to privacy and unfairly criminalizes oral and anal sex for lesbians and gay men.

The state's highest court unanimously rejected attempts by the Arkansas Attorney General and the Pulaski County Prosecuting Attorney to have the case dismissed. The two defendants in the case already lost an attempt to stop the lawsuit in a lower court.

Said Lambda Senior Staff Attorney Suzanne B. Goldberg, who has argued on behalf of the plaintiffs since the case was filed in January 1998, "We look forward to the next step in this case -- the chance to show that the sodomy law violates the privacy and equal protection rights of lesbian and gay Arkansans."

She noted, "Two Arkansas courts, including the highest in the state, have recognized that people who are injured by a law can seek judicial relief without having to wait to be arrested."

The Supreme Court's decision bolstered the case, Bryant v. Picado, by affirming that the seven Arkansans have the right to seek relief from injuries caused by the defendants' power to enforce the sodomy law against them. The Court also transferred the case to the state circuit court, which the justices declared was the more appropriate venue for a challenge to a criminal law. Lambda originally filed the case in state chancery court.

Associate Justice Donald L. Corbin, delivering the opinion of the court, wrote, "We disagree with Appellants' assertion that Appellees' constitutional challenge must be postponed until one or more of them is arrested and charged with violating the statute."

Enacted by the Arkansas legislature in 1977, the statute makes private oral and anal sex between two consenting adults of the same sex punishable by a maximum $1,000 fine and one-year jail sentence. Because the law does not apply to the same acts when done by different-sex couples, Lambda argues that the sodomy ban treats lesbians and gay Arkansans as second-class citizens.

Seventeen states have laws that criminalize certain private sexual acts between consenting adults; of these, five states, including Arkansas, have laws that single out lesbians and gay men.

Lambda recently helped overturn sodomy laws in Georgia, Montana, Tennessee, and Kentucky. Arkansas may well be the next state to dust off its law books and reject such an archaic law. Lambda also is challenging the Texas Homosexual Conduct Law on behalf of two men arrested and charged with having sex inside one man's bedroom.

Lambda Cooperating Attorneys David Ivers and Emily Sneddon of Mitchell, Blackstock, Barnes, Wagoner and Ivers, and Arkansas attorney Gary Sullivan, are also assisting in the case. Lambda is the nation's oldest and largest legal organization serving lesbians, gay men, and people with HIV and AIDS.